Awhile ago I was reading a blog entry of someone who believed that this was true. Here is the argument that was used.

Suppose you were to enter the food production industry and use methods to deny others from entering the industry. You would accomplish this through creating a legal monopoly using the state, and thus anyone who tries to enter the industry would have the proverbial gun placed to their head and threatened.

While marriage is not exactly the same, it is a distinction without a major difference. If a gay couple is denied the right to get married, there is no where else to turn. The state has a monopoly on marriage, and is the only legal authority which can both grant and deny such contracts based upon any legal status that it chooses.

Like the food production industry above, you are prohibited by the state from creating your own competing definition of marriage. The same is true for Christians who believe that divorce should be illegal, or anyone who wishes marriage to look different than its current legal incarnation.

Thus, the argument goes: denial of the right to marry by the state is a violent act. Not in the sense that they'll come assault you with physical violence, but violent in the sense that if you attempted to create a different definition of marriage and create contracts which functioned similarly as to those created by the state you'd face prosecution by the state (which would seek to maintain its monopoly.)

I find this argument interesting. I do not like the term violence, but there is certainly merit to the argument and provides a different angle to look at our plight. The source of our problem becomes not the Christian Right who seek to deny us through democratic means, but the state itself which holds the monopoly of marriage.

What would happen then if instead of demanding that the state accept our relationships as equal to heterosexual relationships, that we instead demanded that the monopoly of marriage be stripped away from the state?

1. The problem is that in the US ministers are used as agents of the state to certify marriage

A marriage license should be treated no different from any other license. No one would advocate denying a driver's license to someone on account of the colour of their skin, gender, or sexual orientation. The same principle should be applied to marriage licenses.

In other countries, the religious marriage is not a state-recognized marriage until a public notary certifies that a couple is married. IOW, all legally sanctioned marriages are civil unions. The normal practice is for couples to go to in front of a government official and, in the presence of witnesses, sign papers declaring themselves to be married. A religious ceremony may or may not follow at a later time and date. Another variant of this practice, and the one that I have personally witnessed, the couple is married at a religious ceremony and immediately proceed to a nearby table where a public notary would have them sign the appropriate government papers certifying them as married.

As to your specific point, the problem remains the pervasive influence of an intolerant and inflexible Christianity in our laws. Opposition to marriage equality for LGBTs comes from the same scum that a generation ago opposed intermingling of the races, or the integration of the armed forces. These people are our version of the Taleban.

"No one would advocate denying a driver's license to someone on account of the colour of their skin, gender, or sexual orientation."

There have been many things denied to individuals based on all of the above criteria.

The opposing point of view is based on the idea that the state should not be involved in issuing the licenses in the first place. Imagine if the state created guidelines anyone who wishes to drive had to meet. Then private groups were established to issue the licenses to anyone who meets that criteria. While -some- may choose to discriminate, so long as no one holds a monopoly on issuing the licenses, another group could be founded to issue the licenses without discrimination.

The same thing could be done with marriage, although in truth it would not work similar to how it does today. The benefits of marriage of today would be reviewed. Then all benefits that can be held by one person would be given to everyone, married or not. Benefits that require additional people (such as filing taxes jointly) would be allowed for anyone who signs up.

This would allow private groups to establish their own contracts without government interference. Even if gay marriage were suddenly made perfectly legal, what about the Mormon polygamist? Why does the government get to say their marriage is less valid? Because people morally disagree with polygamy? Morality is for individuals to decide not the government. That is what we are really fighting against.

Thus, those Mormon groups who wanted to marry their multiple wives, or women who want to take multiple husbands, or the hippie commune which wants to file their taxes jointly can all create their own contract. Even Christian groups which believe that divorce should be illegal could then create their own contract which has steep penalties for anyone who attempts to break it. On the other side of that coin, some contracts could be made so easy to exit that you have a five second annulment (which wouldn't even require the consent of the individual(s) you're in the contract with to approve!)

Such contracts would most likely look something like pre-nuptials, clearly outlining what belongs to who, and how things are to be divided should the contract be violated or terminated by one party or another. The hippie contract could simply state that you leave with whatever you brought into the commune, but anything you produce or create for the commune remains with the commune. The anti-divorce contract could have a stipulation in there that requires a fine of $5,000 to be paid to the partner if one is proven to be unfaithful.

It can go on and on.

However, the gist of the argument is this: So long as the state controls what marriage looks like, in a democracy, minority groups will -ALWAYS- be discriminated against.

"As to your specific point, the problem remains the pervasive influence of an intolerant and inflexible Christianity in our laws."

Yet, it is the state which empowers them. It is the only reason they hold such power over us. If marriage was freed from state monopoly, what they thought would become irrelevant to us and our lives. We could design our own marriage, a marriage that is uniquely suited to each individual or uniquely gay.

Some LGBT people are actually opposed to marriage equality (as ironic as it sounds – I've met them) because they see it as a straight institution. They do not wish to integrate with straight society. They want something uniquely gay – something made for them, specifically.

What do we tell such people? Suck it up and integrate anyway? What about those outside of our movement who would remain discriminated against for various reasons when it comes to the benefits of marriage?

After all, if the state did not attach any benefits to marriage we would not want it. It would be completely irrelevant as we could then simply create our own institution.

I think when you look at things through this lens, it becomes quickly apparent that our real enemy is the state monopoly of marriage. Without that monopoly, what the anti-gay Christians believed would be irrelevant.

I think the regulation of marriage should be stripped away from the state. People should have the right to enter into whatever associations or contracts they choose, with obvious protections for minors, disabled, etc. That is the very basis of freedom.

At the risk of oversimplifying, if I remember my social history correctly, marriage as an institution is a fairly recent idea when measured across the ages. Same sex relationships have existed since the beginning. Taboos rose up because there was a need to populate to insure the survival of the human race. Some of the taboos were encouraged by the various religions, and some encouraged by others who simply want to control. Let's remember that all politics is about control of one type or another, and that isn't limited to the Christian right.

If we lived in a perfect world where no one cared about what relationships another human had, then the percentage of same sex relationships would increase considerably. There are many out there who repress because of social pressure, and believe it or not, a good many of them are Christians and conservatives.

The federal government legislates the benefits and therefore should legislate the contract. It amazes me that a corporation has more rights as a citizen in this country than I do. I agree with the idea that licenses are licenses but all States have criteria that must be met in order to qualify for given licenses. I have no problem with criteria as long as they are Constitutional. I don't believe denial of same sex marriage is Constitutional. I also agree with IndianaGreen:"In other countries, the religious marriage is not a state-recognized marriage until a public notary certifies that a couple is married. IOW, all legally sanctioned marriages are civil unions. The normal practice is for couples to go to in front of a government official and, in the presence of witnesses, sign papers declaring themselves to be married. A religious ceremony may or may not follow at a later time and date. Another variant of this practice, and the one that I have personally witnessed, the couple is married at a religious ceremony and immediately proceed to a nearby table where a public notary would have them sign the appropriate government papers certifying them as married."This is the way it should be. You can have your business blessed but you cannot conduct business without a license. No more religion in marriage! In legal terms a marriage is a contract, licensed by the state, that can only be dissolved with acknowledgment of the state . Marriages conducted outside of religious forums are still marriages as long as the license is official and registered with the Recorder. NO religion can legalize any marriage. Only the State has that power. Since I am a true believer in monogamy, I do not believe the government should "sanction" polygamy. If a man wants to commit to more than one woman so be it. BUT, that "family" as a whole should be self-sufficient. Too many of the polygamist families I have read about or seen on the news count on the government to support their multiple wives and children. THAT is the moral problem I have with them, not their polygamy per say. I'd also add their propensity to wed young girls who do NOT have the right or ability to choose.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

I'm not a lawyer or anything like that, but while I would agree with you on the above basis, we face a problem to my understanding. Gays and lesbians are not a suspect class under constitutional analysis, and laws that discriminate against us do not get the highest level of scrutiny from the courts.

Relying on Loving v. Virginia (which ruled on the basis of the 14th Amendment) is not full proof either.

Anyway, constitutional territory is way over my head. I'm just curious as why you believe it is Constitutional.

"No more religion in marriage! In legal terms a marriage is a contract, licensed by the state, that can only be dissolved with acknowledgment of the state . Marriages conducted outside of religious forums are still marriages as long as the license is official and registered with the Recorder. NO religion can legalize any marriage. Only the State has that power."

This is all correct, and part of the problem that is being posed here. However, there are two issues I want to touch upon. First, do you want the state to be the middleman in your marriage?

Second, proclaiming "no more religion in marriage" does not make sense in the case of our argument. There was a time when I thought we should make a push to have the anti-gay marriage amendments on the state constitutions repealed via the First Amendment, which prohibits the state from favoring one religion over another.

Even though we all know that the VAST majority of the people behind this come from the Christian Right, there are still others out there against gay marriage. There are even atheists out there who are anti-gay marriage. Thus, it could not be attacked on a First Amendment basis.

What is more, religion is only in marriage because the state is in marriage. If the state was out of marriage, then religion could not enter into marriage either.

"Since I am a true believer in monogamy, I do not believe the government should "sanction" polygamy. If a man wants to commit to more than one woman so be it. BUT, that "family" as a whole should be self-sufficient. Too many of the polygamist families I have read about or seen on the news count on the government to support their multiple wives and children. THAT is the moral problem I have with them, not their polygamy per say. I'd also add their propensity to wed young girls who do NOT have the right or ability to choose."

While I am not pro-polygamy personally, I am pro-keeping the government out of making the decision as to whether or not it is right or wrong. Virtually every argument you've used there is similar to the argument made by the Christian Right against gay marriage.

They don't want to see the government "sanction" gay marriage. If two men or two women want to live together so be it, but we shouldn't call it marriage. Etc. Etc.

The rest of your argument against polygamy is somewhat odd. Granted, I'd imagine some of them rely on the government to support their wives and children through welfare, but I can equally imagine some - in fact many - who do not.

As to their marrying young girls, I've seen some that have chosen not to do that. One man I saw before had two wives, one he had been married to for awhile, and the other joined the family when she was middle aged. Although in truth the second wife was more for his first wife, since both of the women were bi-sexual.

As for their ability or right to choose - I don't really buy that argument. Since there are laws that prohibit children from entering into contracts until they are legal adults, and even under current law I think the youngest you can get married is sixteen in some states. It's pretty irrelevant over all, since by law anyone is able to leave their spouse. If they were kept there by force, then that is certainly against the law.

Finally, it is not just polygyny (one man having more than one wife) we are talking about here. We are also talking about polyandry (one woman having more than one husband), group marriage (husbands having many wives and those wives having many husbands. We shouldn't conflate polygamy (multiple people in a marriage) with polygyny (one man having more than one wife).

That would only scratch the surface, I think. Marriage like contracts, if freed from the monopoly of the State, could take on forms that we have yet to even imagine.

6. venturing off topic here (apologies for a derailment on a subthread)

Edited on Sun Aug-09-09 01:10 AM by noamnety

but I want to comment on this: "If a man wants to commit to more than one woman so be it. BUT, that "family" as a whole should be self-sufficient. Too many of the polygamist families I have read about or seen on the news count on the government to support their multiple wives and children. THAT is the moral problem I have with them, not their polygamy per say."

First, I think it's heading into dangerous territory to tie polygamy with government assistance in the way that you did - because the implication is that people living in poverty shouldn't be allowed to get married or have kids. That's problematic for a whole host of reasons.

Second, polygamy doesn't fall into current marriage laws for contractual reasons. The contract has to do with all kinds of shared responsibilities among the two people who entered into the contract, including things that fall apart when you have a number of people suddenly entitled to make decisions, and they can't agree amongst themselves. (Next of kin medical decisions come to mind.) The contractual relationship doesn't hold up with things like one wife accruing a debt, the husband by marriage co-owns that debt - but then suddenly so do other wives who never entered into that contractual agreement with the first wife.

Again, many apologies for being lured into addressing that, because I don't feel the point should even be debated in the GLBT forum. Mostly I found the notion that marriage should be denied to people based on income level to be too objectionable to hold my tongue.

...that same-sex couples rightly demand (whether you call it "marriage" or anything else), and I don't see how legal recognition can be in the hands of any institution other than the state.

One idea is for the state to offer all couples "civil unions", and leave "marriage" to any private institution willing to accomodate the ceremony. But America usually doesn't solve problems the easy way.

But the rights and responsibilities that come with legal marriage can't be placed under the authority of any institution but the state.

...legal advantages / privileges are acknowledged and supported by the state.

The state does not need to be the issuer of the contracts, nor determine what makes up a valid contract. It only needs to enforce the contract (through the judicial system).

I suppose part of the reason I am drawn to this argument is by going to the state and begging for "equal rights" - we are inherently saying we are not equal.

It is the difference between inalienable rights and state-granted privileges. Why do we require the state to validate our relationships? I believe we possess inalienable rights - the same rights possessed by everyone else - so why do we have to petition the state? Inalienable rights are supposed to be rights that cannot be given away. If I were in a committed relationship right now, I would view it just as valid and equal to any heterosexual relationship. Why do I need the state to agree with me?

I believe we have an inalienable right to freely have a relationship with anyone we choose, and those individuals in that relationship have the inalienable right to define that relationship.

To argue otherwise is to place yourself on a slippery slope. If what we seek is not an inalienable right, is it then a state granted advantage / privilege? If that is the case, is it legal for the state to decide who receives the privilege? Since we are merely looking at marriage as a simple contract with privileges attached to it, is it morally equivalent to granting a copyright or a patent? In those cases the state is discriminating against other companies (which legally are seen as individuals).

It may seem odd to compare our quest for marriage equality with a patent, but in truth they are not all that different. They are both contracts issued and protected by the state. Those who possess a patent have certain advantages over those who do not.

If we argue simply from a contractual, abstract standpoint, don't we risk boxing ourselves into such an argument? In fact, I think this argument is the strongest defense against gay marriage that exists. It becomes a question of whether or not the state has the inherent power to grant privileges or advantages to one group over another.

...a private contract between two people can't measure up to the legal marriage contract. While a private contract can be enforced by the state, that contract can't provide what the state provides with legal marriage (Social Security spousal benefits, just to name one from a long list). There is simply no equivalent that provides for a couple what legal marriage provides.

On your other points, when a same-sex couple goes to court seeking marriage, they are not implying that they are unequal. They are saying that they are equal, but that the state has failed to recognize this equality. When the courts agree (as they did in Mass., Calif., and Iowa) the Courts cite the equal protection clauses in their state constitutions as the foundation for their reasoning, and say that the state has failed to provide any good reason to deny a same-sex couple equal treatment under the law.

So a couple (same-sex or opposite sex) does not need the state to validate their relationship. But the state does offer to opposite sex couples a contract called legal marriage, which contains both a great many benefits, as well as enforcable responsibilities. Same-sex couples just want to be offered the same option from the state. To be refused that option is to be denied equal protection of the law.

I realize that certain benefits (you named Social Security spousal benefits) cannot be gained without the blessing of the state. I do not deny this. However, further up in the thread I proposed a couple adjustments.

First, all benefits granted by marriage that could be obtained by a single individual would be granted to all individuals married or not. Second, all benefits granted by marriage that require an additional individual (Social Security spousal benefits as an example) would be amended to be available to anyone who signs up.

This could potentially mean that you could pass on your Social Security benefits to your sister or brother, should you so desire. In some cases, there may be certain limitations. For example, when passing on Social Security benefits, there may be a stipulation that the individual receiving the benefits must have a net worth below a certain amount, and that it may only be passed onto non-blood related relatives.

Finally, any benefits that cannot be structured in such a manner (for example: the benefit of family discounts at national parks) would simply be abolished all together. All of this allows individuals to create their own contracts as they see fit. If you desired a custom "marriage" contract you would go to a lawyer. The contract would most likely look similar to a prenuptial agreement.

An added benefit here is that it clearly outlines what you are getting into before you get into it. It could reduce the burden on the courts when it comes to something like divorce (or the legal equivalent) as in most cases how things would be divvied up would already be decided at the very beginning.

In response to your other points, I don't think you understood what I meant by inalienable rights. Although the Declaration of Independence holds no legal value, it does hold some moral value today and is relevant to the discussion.

"We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."

That defines what I consider to be inalienable. Inalienable by definition is something that is not transferable to another or capable of being repudiated. If we look at the Declaration of Independence as an example, it says that all individuals are born with certain rights. That then creates a second class of rights, which are more akin to privileges granted by the state.

Now, you can look at the Constitution and attempt to make a legal argument. You can even point to certain States and the rulings that have passed through their Supreme Courts. That does not mean the United States Supreme Court is going to agree, as there have been other State Courts which have ruled against us on the issue.

Additionally, I would point out that the U.S. Supreme Court right now leans toward the conservative side ideologically and we have no idea where Justice Sonia Sotomayor will stand. If her past record is any indication I would say there is a 50/50 chance either way.

However, setting all that aside for the moment. If you are making the argument on legal Constitutional grounds, based off Equal Protection, you are making a 14th Amendment argument. As we all here know, 14th Amendment arguments are highly subjective at best.

We face an additional hurtle that race-based arguments around the 14th Amendment did not face. We have to prove that being gay isn't a choice. Now, we know it is not, but every person sitting on the bench (as far as we know) is straight. Since we don't yet have any genetic evidence we can point to that makes clear being gay isn't a choice, such an argument comes down to (for straights) personal beliefs. A straight person either believes individuals are naturally gay or that being gay is a choice. In the end, we would get a 5 to 4 decision in our favor if we are lucky. If we are really unlucky (with Sotomayor) we could see a 6 to 3 ruling against us.

Finally, we also open an additional can of worms. If we are successful in our quest, what does that mean for the government and its power to confer certain privileges onto one group and not another?

Let us say the government decides to create a system to help poor children pay for college. A wealthy kid then sues based on equal protection. Neither the wealthy kid nor the poor kid chose their wealth status, yet one is clearly being discriminated against by the law. The wealthy kid could even argue that, because he pays more money in taxes, that he is even more entitled to the grant money than the poor kid.

Then what about corporations, which more-or-less have the status of personhood? Could they use the 14th Amendment to argue that patents or copyrights are unconstitutional because it allows the state to grant favors to one group over another?

Some people might read that and roll their eyes. Yet, the argument we make here has broader implications outside of marriage, and what's more it relies too much upon the opinions of individual justices and very little on the actual law.

We are talking about contractual privileges here. The government is not denying us the right to share our lives together or the right to raise children. To make a full circle: the government is denying us the privilege of things such as Social Security spousal benefits. Yet, the government could, at any time it wished, declare that Social Security benefits are non-transferable. While that may create a public outcry, there is no court in the United States that is going to deny the governments right to do that.

Thus, receiving Social Security spousal benefits is a privilege, not a right, and like patents or certain government programs, the government could argue that it has the right to discriminate on a certain basis. In our case, the government chooses to discriminate because it seeks to promote a certain type of relationship and behavior over another.

needlessly complex? It sounds like you're proposing to redesign an entire complex system that works quite well for society, and whose only problem is that it is too restrictive about who it lets in. When mixed race couples wanted in, the solution wasn't to redesign it. We just let them in. Same-sex couples are now knocking on the same door, and can be let in on the same basis.

I am certainly not advocating that this should be taken to the U.S. Supreme Court right away. You're right that there is no reason for confidence in their decision. I think most supporters prefer a gradual, state-by-state approach. As more and more people realize that there is no good reason to deny a same-sex couple a marriage license, marriage equality will spread throughout the country.

Yes, I am advocating redesign for the purpose of disentangling the whole mess from the state. I agree on your final point, but let me touch on your first point then add an additional one of my own.

I would encourage you to step back a moment and think about the system you are defending. Why should the state have any say at all over who gets married, and what a relationship should look like? To give an answer in support of the state places us in the same position that our opponents currently occupy. To answer the question you almost have to start out with, "The purpose of marriage is..." To which I'd retort, "Why does the state get to define the purpose of marriage?"

Our opponents claim that the state can deny us the right to marry because the purpose of marriage is procreation. Since same sex couples can't breed, then the state can be selective in who it allows to get married. This is functionally no different than giving the poor child a grant to go to college, while denying the wealthy child the ability to apply for the grant. In the case of the grant the state is trying to promote college education, and in the case of marriage the state is trying to promote procreation.

Most (and some might argue all) of the benefits granted by marriage are privileges and not rights. As I argued previously in the case of Social Security spousal benefits, the state has the right to suddenly decide that such benefits are non-transferable. No court in the entire country would deny that the state doesn't have the right to do that. As a result such things are privileges not rights.

When we step forward to argue for gay marriage we are really putting forward two separate reasons as to why we want it. First, we want all the benefits associated with the legal contract of marriage. Second, and perhaps the most important, we seek the state to validate our relationships in the eyes of the law as being equal to heterosexual relationships.

This bothers me about our argument, and brings us back to my discussion on inalienable rights. I already believe that gay relationships are equal to heterosexual relationships. This in my eyes is an undeniable truth. The state cannot look at a gay relationship and say that it is untrue. It can, as it currently does, refuse to acknowledge it.

However, this is the equivalent of someone trying to convince everyone the Earth is flat. Just because they want it to be flat does not change the fact that it is round. It does not even matter if they gain the power to execute anyone who claims the earth is round, it will never change the fact.

It is because of my belief that gay relationships are equal to heterosexual relationships that I support marriage equality. It has nothing to do with the fairness of the privileges granted by the state, even though I covet them as well.

This is why our opponents stand against us. They do not view our relationships as equal to their own. They fear that if the state recognizes our relationships, it will lend us an air of legitimacy which would in turn lead to social acceptance. This is bad for them as it will marginalize them from the mainstream and turn society against them.

However, it bothers me that we are turning to the state and seeking marriage as a form of validation. We do not need to be validated because we are already equal. This is where the whole separate but not equal debate plays out when it comes down to civil unions vs marriage.

From my view, the state can deny us the privileges of marriage all they want: it will not change the fact that our relationships are equal to heterosexual relationships. Nor will legalizing gay marriage suddenly awaken the public at large to this fact. Indeed, if gay marriage was to suddenly be legalized tomorrow when we all woke up, those who opposed it will still oppose it. Over time people would grow to accept us as equals, but people are already doing that without state approval. This is why our opponents are fighting a losing battle.

I know all this may seem semantical, but it really bothers me that the state has the power to determine what is and is not a valid marriage. So, while I may not support polygamy (or some other form of marriage) they find themselves in a similar plight. Just because I do not support polygamy personally, does not mean I view myself (or the state) suitable to determine how others should live their lives.

So, going back to your first point and wrapping things up, to support the state having this type of power forces each and every group which wishes to expand the definition of marriage to fight the same battle over and over. If we believe that morality should not be allowed to influence who can and cannot enter into a legal contract, then it only makes sense for us to disentangle marriage from the state.

...by saying that while the second reason to seek marriage (validation) may be dubious, in the case of state validation, or difficult to obtain, in the case of society's validation, it still does not negate the value of the first reason (legal benefits). Being thought of as unequal can never provide an excuse for being treated as unequal.

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